In April 2014, the Italian newspaper, La Stampa, reported on a case of inverted embryos during medically assisted procreation (MAP) (Gènéthique press review on April 14th, 2014).
At the Sandro Pertini Hospital in Rome during prenatal genetic tests on twins during the third month of pregnancy, a pregnant woman learned that she was in fact carrying another couple’s embryos.
The biological couple started legal action to ensure that both babies, born 3 August 2014, were given to them since the woman who carried the embryos and her husband declared their right to parentage before the Italian state.
This case caused a public opinion backlash in Italy in terms of the debate on whether “preference should be given to DNA or pregnancy? “
The Italian court dismissed the demands of the biological parents giving priority to the links formed during pregnancy between babies and the woman carrying them, bearing in mind that “as early as the first few days of life, a child develops an emotional link with parents”. Judge Silvia Albano considered that, in fact, there was a “substantial interest […] in maintaining the link” between the twins and the woman who carried them.
According to Italian legislation, “the children belong to the mother who has brought them into the world”. Interviewed by Le Figaro, Ms. Isabelle Rein-Lescatereyres believes that the case would have undoubtedly had the same outcome in France: “In our opinion, the mother is the person who gives birth. Today, French law also gives preference to pregnancy over DNA”.
As regards the father of the “mother carrying the children”,according to the Italian system, “he becomes the child’s legal father when the mother who carried the child states on the birth certificate that the child was born during their marriage”.
“This is one way in which the judge can show that the decision is based not only on law but is also morally fairer”, explains Jean René Binet, Law Professor at Rennes University. “This case calls for a definition of parentage. Is it biological, emotional, intentional? It is just as complex as surrogacy”.
Lastly, the judge acknowledged “the human drama” experienced by the biological parents who had gone to the hospital for in-vitro fertilisation. In this context, they are entitled only to compensation under Italian law. However, they are prepared to take their case to the European Court.